If an employer hires you as an independent contractor, they need to treat you as so. Cases of employers treating independent contractors as employees, yet not paying them the minimum wage, overtime pay and other benefits, have been reported.
So, have you been misclassified as an independent contractor?
Are you free from control and direction?
An independent contractor should be free from control and direction, both under contract and in fact. A hiring entity should not control how and where you work – only the results of your work.
If an employer requires you to be in the office at a particular time, you may have been misclassified. This is because independent contractors generally have the autonomy to decide how, where and when they work. It can be unlawful for a hiring entity to have significant control over the work of an independent contractor.
Is the work you perform outside the usual course of the hiring entity’s business?
In California, one is considered an independent contractor when the work they perform is outside the usual course of the hiring entity’s business. For example, when a retail store hires an electrician as an independent contractor to add new fixtures, or a restaurant hires a plumber to perform repairs.
If you perform work similar to what the hiring entity usually does, you need to obtain more information to determine if you have been misclassified.
Do you have your own established business for the work performed?
You are considered an independent contractor when you have a business through which you routinely provide the same type of work as the one performed for the hiring entity.
The ABC test is primarily used to determine if an independent contractor has been misclassified. Learn more about the best ways to handle a misclassification.